FILED
NOT FOR PUBLICATION JUN 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-16575
Plaintiff - Appellee, D.C. Nos. 4:05-cv-03756-DLJ
4:98-cr-40082-DLJ-3
v.
KEVIN LEE DAVIS, AKA Slow, AKA MEMORANDUM* AND ORDER
Yellow Dude,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, Senior District Judge, Presiding
Argued and Submitted June 11, 2014
San Francisco, California
Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.
Kevin Davis appeals the district court’s denial of his motion for post-
conviction relief pursuant to 28 U.S.C. § 2255. The sole issue on appeal is whether
the admission of the statement of Sandy Medina was harmless error. Davis’s trial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
took place before the Supreme Court’s decision in Crawford v. Washington, 541
U.S. 36 (2004). Medina’s arrest precipitated Davis’s prosecution, and her refusal
to testify was unexpected. Her statement to police was read to the jury toward the
end of the prosecution’s case, and the prosecutor did refer to it repeatedly during
closing and rebuttal. The applicable harmless error standard is whether the error
had a substantial and injurious effect or influence in determining the jury’s verdict.
Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993); United States v. Montalvo,
331 F.3d 1052, 1058 (9th Cir. 2003) (per curiam).
We have said that the factors we apply in determining whether a
Confrontation Clause violation satisfies that standard are: the importance of the
testimony in the government’s case; whether the testimony was cumulative; the
presence or absence of evidence corroborating or contradicting the testimony; the
extent of cross-examination permitted; and the overall strength of the
government’s case. Whelchel v. Washington, 232 F.3d 1197, 1206 (9th Cir. 2000)
(citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
Here, the evidence against Davis was overwhelming. It included pager
codes, recorded telephone conversations, expert testimony, co-conspirator
testimony, surveillance, and physical evidence. While it was convenient for the
government to place some emphasis on Medina’s statement when it appeared that
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it was properly admissible, the statement added little to the government’s case. It
merely provided concise corroboration for what the government had proved over
the course of the two-month trial.
Davis has also moved to strike Volume VI of the government’s excerpts of
record. Volume VI consists of the transcripts of intercepted phone calls between
Davis and his co-conspirators. Davis points out that only the tapes themselves, not
the transcripts, were admitted into evidence. The transcripts were part of the
record on direct appeal, and Davis has never contended that there was any
inaccuracy. The motion to strike is therefore denied.
The judgment of the district court is AFFIRMED, and Davis’s motion to
strike is DENIED.
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